Europe Updates Environment Impact Assessment Law

BRUSSELS, Belgium, October 31, 2012 (ENS) – A modernization of Europe’s environmental impact assessment law now underway will enable governments, for the first time, to take into account climate change, biodiversity, disaster prevention and resource efficiency when considering big projects that may affect the environment.

The current EIA Directive came into force in 1985 and has not been altered since 1997. The new law aims to correct shortcomings and reflect developments in policy, law and technology over the past 25 years. It is intended to align the Environmental Impact Assessment, EIA, Directive with the principles of what the European Commission calls “smart regulation.”

Three key problems with the existing EIA Directive emerged from a two-year review process that included scientific studies and consultation with stakeholders and the public: insufficient operation of the screening process, insufficient quality and analysis of assessments and risks of inconsistencies within the EIA process itself and in relation to other legislation.

Currently, there are big differences across the European Union in the screening process that determines whether or not an environmental impact assessment is required for projects such as infrastructure, dams, industrial plants or quarries.

In some of the EU’s 27 Member States many EIAs are carried out, sometimes for projects with minor environmental impacts, creating unnecessary administrative burdens. In other Member States, projects with major environmental impacts escape the EIA requirement.

“Failures to correctly apply the screening process constitute the most significant and recurring problem, as they represent a high percentage of infringement cases initiated by the Commission,” said the European Commission, the executive branch of the EU government. “This loophole has to be fixed to ensure that all projects that affect the environment do get the assessment they need.”

Another problem is that quality of the information used in the EIA reports, when left to the national authorities “often results in a lack or poor quality of EIA data and analysis (including on new environmental topics such as climate change, disaster risks, or biodiversity), which make their way into the EIA reports and lead to ill informed decisions,” the Commission said. “Good data and decisions, by contrast, increase the social acceptance of projects, avoiding costly delays and litigation.”

Finally, as the EIA Directive has not been adapted since 1997, there are risks of overlaps with assessments required under other EU laws, which can lead to a duplication of costs for developers and public authorities. As the present law does not specify time-frames for the individual steps of the process, the time spent in carrying out the assessments may vary greatly – the average duration of an assessment now ranges from five months to 27 months.

Building under construction in Glasgow, Scotland (Photo by Ian Britton courtesy Freefoto.com)

Too short time-frames for public consultation may hinder social acceptance of projects and too long ones may generate additional costs. These divergences can generate significant uncertainties, socio-economic costs and unnecessary administrative burdens for business and public authorities.

As the legal framework already exists at EU level, it has to be updated at EU-level, the Commission said. Action solely at the national level could increase discrepancies and hamper the functioning of the internal market.

Action at EU level also brings added value because of the transboundary nature of environmental issues and projects, for example in fields like energy and transport.

Environmental groups have welcomed the European Commission proposal for a revision, but they say more public involvement in the process is needed.

The European Environmental Bureau, EEB, which represents 140 member groups across Europe, and Justice & Environment, J&E, a European network of environmental law organizations, agree that despite some improvements, in many aspects the proposal remains in contravention of the Aarhus Convention.

There is no provision to halt projects while court cases are pending, something the federations say is both unacceptable and in breach of the Convention.

Jeremy Wates, EEB Secretary General said, “For years, developers have got away with avoiding having the environmental impact of projects taken into account by splitting up projects into small parts; otherwise known as ‘salami slicing.’ The EEB is happy to see that today’s proposal deals with this by examining the accumulation of impacts of multiple projects by the same or different developers.”

But he said more remains to be done to bring the directive into the 21st century. “This proposal makes no attempt to deal with the bizarre situation whereby the project developer is under no obligation to guarantee that the EIA is carried out before the project starts,” said Wates.

The criteria for whether or not a project should have an EIA are now more specific. The proposed text includes new aspects to be taken into account, such as impacts on climate change, and more comprehensive analysis of environmental impacts.

Once the project is under way, the proposal then provides for monitoring of the environmental impact, though this is still not a requirement for all projects.

“This proposal lacks any improvement regarding access to justice or public participation even though the case law of the European Court of Justice and the Compliance Committee of the UN-ECE Aarhus Convention both found that it should do”, said Thomas Alge, who chairs Justice and Environment.

“Among other things it is not acceptable that NGOs are not explicitly entitled to participate and challenge screening procedures for projects,” said Alge. “This means public participation rights remain in breach of the international obligations of the EU and its Member States.”